Tennessee Gas Transmission Co. v. Fox, 10200

• Decision Date: 21 March 1950
• Docket Number: No. 10200,10200
• Citation: 134 W.Va. 106,58 S.E.2d 584
• Court: West Virginia Supreme Court
• Parties: TENNESSEE GAS TRANSMISSION CO. v. FOX et al.

Page 584

58 S.E.2d 584

134 W.Va. 106

TENNESSEE GAS TRANSMISSION CO. v. FOX et al.

No. 10200.

Supreme Court of Appeals of West Virginia.

Submitted January 17, 1950.

Decided March 21, 1950.

Syllabus by the Court.

1. A witness in a proceeding in eminent domain who is acquainted with the land involved, or who has recently visited and examined it and is familiar with the market value of other lands in the same locality, or who owns and has lived upon the land, is sufficiently qualified to give his opinion of its market value. The opinion evidence of a witness so qualified is admissible but its weight and its credibility are questions for the jury.

2. The determination of the qualifications of a witness to give his opinion of the market value of land involved in a proceeding in eminent domain rests in the sound discretion of the trial court, and such discretion, though subject to review, will not be disturbed unless its abuse is clearly shown.

3. The true measure of compensation to which the landowner is entitled for an easement in his land and for damage to the residue, in a proceeding in eminent domain, is the market value of the easement and the damage to the residue of the land actually occupied by it and the difference between the market value of the residue of the land not occupied by the easement immediately before and immediately after the easement is taken, without regard to benefits when no benefits are derived from construction on or use of the easement and that question is not presented or involved; and in such proceeding the market value of the easement and the damage to the residue of the land occupied by the easement may be established by the difference between the market value of the land occupied by the easement immediately before and immediately after the easement is taken.

4. An instruction which is not based upon evidence is properly refused.

5. Unless the contrary clearly appears, it will be presumed that the jury obeyed the instruction of the court to disregard statements of a witness which were excluded from the evidence.

6. In a proceeding in eminent domain, the compensation and the damage to which the landowner is entitled are indeterminate in character and the verdict of the jury will not be set aside as excessive unless it is not supported by the evidence or is so large that it indicates that the jury was influenced by passion, partiality, prejudice or corruption, or entertained a mistaken view of the case.

Campbell & McNeer, Huntington, Charles F. Bagley, Jr., Huntington, for plaintiff in error.

Scott & Ducker, Huntington, P. W. McCreight, Huntington, for defendants in error.

HAYMOND, Judge.

Having been unable to agree with the landowners upon the amount of compensation, the applicant, Tennessee Gas Transmission Company, a corporation, instituted in the Circuit Court of Cabell County this proceeding in eminent domain against the defendants, W. B. Fox and Ella D. Fox, his wife, to obtain a perpetual easement for a twenty four inch pipe line upon a tract of thirty eight acres of farm land owned by the defendants in that county for the transmission of natural gas. The length of the easement taken, which passes through two separate small sections of the thirty eight acre tract, is 906 feet; its width varies from approximately twenty five to fifty feet at different places on the land; and the total area of the two sections occupied by the easement is .86 of an acre of land. The applicant having filed its petition and a bond in the penalty of $1,000,000, an order permitting possession and appointing commissioners were entered on May 15, 1948. An award of compensation in the amount of $236.25 was made and reported by the commissioners on May 21, 1948. The defendants filed exceptions to the report and the question of compensation and damage was submitted to a jury of freeholders. The jury returned a verdict of $850.00 as compensation for the easement and damage to the residue of the land. On June 11, 1949, the circuit court overruled the motion of the applicant to set aside the verdict and award a new trial and entered judgment on the verdict. To that judgment this writ of error was granted by this Court upon the petition of the applicant.

The applicant took possession of the easement and installed a twenty four inch transmission pipe line. As constructed the top of the pipe is two feet, and the bottom of the pipe is four feet, below the surface of the land. The line is built of metallic pipe, five sixteenths of an inch in thickness, in a solid, welded unit, with no flanges or couplings. The pipe is tested to withstand pressure of 1225 pounds and will carry a pressure of about 800 pounds on the easement. It is treated and prepared against corrosion and the line is capable of lasting for an indefinitely long period of time. The restrictions imposed upon the easement permit the landowners to make full use of the surface of the land except to the extent that such use will unreasonably interfere with the right of the applicant to use the easement for the purpose for which it is acquired. At the time of the trial, when the jury visited and viewed the premises, the line was not in use but the work of installing it had been completed except that the surface above the line had not been graded and smoothed.

Upon the trial two witnesses, Brady, a member of the county court and a hardware dealer, and Frazier, a nearby landowner, and the defendant W. B. Fox, testified in behalf of the landowners as to the value of the easement taken and the damage to the residue of the land. On that question the applicant offered the testimony of two witnesses, Varnum, a real estate dealer, and Saunders, the county assessor. Brady had had some experience in appraising real estate values and had visited and examined the thirty eight acre tract of land the day before he testified. He had never bought or sold any land in the vincinity of the land of the defendants and did not know of any sales of land in that locality. Frazier had owned and lived on land near the thirty eight acre tract for about seventeen years, was acquainted with land values in that section, and had seen the land of the defendants. He did not, however, know of any sales of real estate in that neighborhood. The defendant W. B. Fox, the owner of the land in fee, had owned and lived on the tract for thirty years.

Brady placed a value upon the .86 of an acre occupied by the easement of $150.00 immediately before the easement was taken and stated that the land occupied by the easement had 'very little' value immediately afterward. The applicant objected to the value of $150.00 before the easement was taken but did not object to the statement of 'very little' value for that part of the land immediately after the easement was taken. The witness also stated, over objection by the applicant, that the value of the residue of the tract immediately before the easement was taken was $5,000.00 and, without objection, that its value immediately afterward was from $3,500.00 to $3,800.00. Frazier testified, over objection by the applicant, that the value of the .86 of an acre, immediately before the easement was taken, was $140.00 to $160.00 and, without objection, that its value immediately afterward was 'not over ten per cent'. He also stated, over objection by the applicant, that the value of the residue of the land immediately before was $4,500.00, and that its value immediately after was 'around $2,500.00 to $3,000.00'. Fox, the landowner, testified, over objection by the applicant, that the value of the .86 of an acre, immediately before the easement was taken, was $250.00, and that its value immediately afterward was $25.00; and, without objection, that the value of the residue immediately before was $5,000.00 and immediately after was $2,500.00. The witness Varnum, who testified in behalf of the applicant, valued the .86 of an acre at $60.00 immediately before the easement was taken and at $30.00 immediately after, and the residue at $2,220.00 immediately before and at $2,120.00 immediately after. The value testified to by each of these witnesses represented their opinion of the market value of the land involved. Saunders, the assessor, the other witness on value offered by the applicant, testified, without objection, that the assessed value of seventy eight acres of land which included the thirty eight acre tract was $970.00 for the year 1947. Upon this evidence and a view of the land the jury returned the verdict of $850.00.

During the cross-examination of Thompson, a pipe line superintendent of the applicant and a witness in its behalf who testified about the character and the construction of the pipe line on the easement, the attorney for the defendants inquired if there was a 'certain amount of danger to a proximity to this big line'. To this question the witness replied that he had worked around pipe lines for twenty years and that he did not 'worry about it'. Asked about the possibility of a break in a transmission pipe line he stated that 'there is always a possibility'. He also stated, in answer to a question whether he had been present when any break had occurred in any pipe line of the company, that he had not been present on any such occasion but that there had been one break in another line of the applicant. There was no objection by the applicant to any of these questions or answers. During the examination in chief of the witness Frazier, who testified in behalf of the defendants, he was asked if, in arriving at the values given by him, he had considered 'the question of danger' and his answer was: 'As far as I am concerned, it is very dangerous. I wouldn't want to live within a thousand feet of the line.' Upon objection the court instructed the jury 'to disregard the voluntary statement of the witness with regard to the danger of the line'. The foregoing statements of these two witnesses were the only references to any...